New whistleblower law in Estonia: Shortly compared to Germany and France

The purpose of the law is to protect whistleblowers who report on occupational violations. No coercive measures may be used against whistleblowers, e.g. termination of employment or reduction of salary. As part of the protection, the relevant regulation obliges companies with at least 50 employees to create an internal channel for reporting violations securely and confidentially, as well as corresponding procedures for processing violation reports.

In several countries, the relevant whistleblower protection law has been established in such a way that the whistleblower receives broader protection than pursuant to the Whistleblowing Directive. Thus, according to some of the local laws, whistleblowers may be protected, for example, in case of reporting all occupational violations. 

The relevant Estonian Act on the Protection of Whistleblowers provides protection to the whistleblower only in case of reporting specific violations of EU law. Therefore, Estonian employers must receive and process only those violation reports that are listed in the Whistleblowing Directive (for example, reports about violations related to corruption, public procurement, environmental protection, consumer protection, product safety, etc.). Nevertheless, this means for the employer that it must be analysed and determined on a case-by-case basis whether the violation falls within the scope of the law.

In Germany, however, the relevant whistleblower protection law covers a wider scope than that stipulated in the Whistleblowing Directive. The whistleblower scheme can, for example, be used to report violations punishable by German law, and violations of laws aimed at protecting the life and health or rights of employees, to the extent such violations are subject to fines. Because of broader definitions, France has also established a broader protection for whistleblowers than the minimum stipulated in the Whistleblowing Directive.

In addition to the different material scope of the whistleblower laws, EU member states may also have different approach on anonymous reporting possibilities.

In Germany, there is no obligation to create an internal channel in such a way that it enables anonymous reporting. At the same time, the German law stipulates that the company should also process anonymous notifications. There are no such express provisions in the Estonian law, but the Estonian law provides that the identity of the whistleblower may be disclosed only with the written consent of the whistleblower. In France, a company is not obliged to set up an anonymous reporting option.

Under the Whistleblowing Directive, companies with at least 50 employees are obliged to establish internal reporting channels. Also, under the directive, a whistleblower is not obliged to first report via internal reporting channel, but has the option to report directly to external authorities.

In France, whistleblowers can report directly to an external authority, rather than having to use the company’s internal reporting channel first. Before the transposition of the Whistleblowing Directive, the French whistleblowers were required to report internally first.

In Germany, there is no obligation to use the internal reporting channel first, but the whistleblower can choose between an internal and an external channel. However, the German legislator strongly encourages to create incentives for whistleblowers to first report via internal channel. At the same time, it must not be made difficult to inform through an external channel.

Also, according to the Estonian Act on the Protection of Whistleblowers, the employer cannot restrict or oblige the whistleblower to use an internal channel, because the violation can also be reported immediately using an external channel. However, the employer can encourage the use of the internal reporting channel as the first choice. The internal reporting channel helps the employer to prevent or eliminate the violation so that the property damage and damage to reputation that may arise from it is minimal and affects as few people as possible. For this reason, Estonian companies with fewer than 50 employees are also encouraged to set up an internal reporting system.

All specifics that a country’s whistleblowing law may entail ensure that the local law not only aligns with the Whistleblowing Directive, but also addresses local needs. Companies operating in multiple EU countries who establish or have established violation reporting channels and procedures can ensure full compliance only if they are also aware of the specific local requirements.